CBP announced the establishment of the Electronic Visa Update System (EVUS), a new platform under development to enhance border security in accordance with the bilateral arrangement with China to issue tourist and business visas with 10-year validity periods.

2. DHS Issues Final Rule Amending F-1 Regs, Breaks Record for Public Comments

On March 11, 2016, the Department of Homeland Security (DHS) published a final rule amending regulations to expand optional practical training (OPT) for students with U.S. degrees in science, technology, engineering, or mathematics (STEM) and create new obligations for F-1 students and F-1 employers starting May 10, 2016.

OPT is a form of temporary employment available to F-1 students (except those in English language training programs) that directly relates to a student’s major area of study in the United States. A student can apply for OPT during the course of his or her academic program, or after completion, and may apply for 12 months of OPT at each education level (e.g., one 12-month OPT period at the bachelor’s level and another 12-month period at the master’s level). While school is in session, the student may work up to 20 hours per week pursuant to OPT.

DHS first introduced an extension of OPT for STEM graduates in a 2008 interim final rule. Under the 2008 rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT, provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify employment eligibility verification program. On August 12, 2015, the U.S. District Court for the District of Columbia ordered the vacatur of the 2008 rule on procedural grounds and remanded the issue to DHS. The court stayed the vacatur until February 12, 2016 to give DHS the opportunity to issue a new rule related to STEM OPT extensions through notice-and-comment rulemaking.

On October 19, 2015, DHS published a notice of proposed rulemaking (NPRM) to reinstate the STEM OPT extension, with changes intended to enhance the educational benefit afforded by the extension and to increase program oversight, including safeguards to protect U.S. workers. The rule received more than 50,500 comments—the most in DHS history. On January 23, 2016, the court gave DHS additional time to complete the rulemaking following review of public comments and to allow the Department to publish the rule with a 60-day delayed effective date to provide sufficient time for transition.

Highlights of the new rule include:

Extension period to increased from 17 to 24 months. Under the amended regulations, F-1 STEM students will be able to extend OPT for an additional 24 months beyond the initial 12 months, replacing the 2008 regulation that allowed F-1 STEM students to receive a 17-month extension of OPT, and providing work authorization for employment related to their field of study.

New reporting requirements for F-1 students and university officials. New reporting requirements include:

a six-month validation requirement, confirming the F-1 student applicant’s application for work authorization through the OPT program;

an annual self-evaluation required of F-1 students, for designated school officials to review; and

an affirmative requirement for F-1 students to report any change in employment status or material departure from the adopted Training Plan. This is in addition to the requirement for F-1 employers to report similar changes to designated school officials within five business days, which remains in effect.

F-1 employer requirement to complete formal Training Plan with F-1 student. The new regulations will increase DHS oversight over the OPT program. F-1 employers must complete a formal Training Plan on Form I-983 and comply with new wage requirements. The formal Training Plan must include concrete learning objectives with proper oversight. F-1 employers must set out the terms and conditions of employment, including the specific duties, hours, and compensation.

As part of the Training Plan, F-1 employers must attest that the F-1 employee is paid a salary commensurate with similarly situated workers and further provide:

it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity;

the student will not replace a full- or part-time, temporary or permanent U.S. worker; and

the opportunity will help the student attain his or her training objectives.”

DHS to conduct on-site visits. The new regulations state that DHS has discretion to conduct employer site visits to ensure that F-1 employers meet the requirements of the OPT program. Generally, DHS must provide notice 48 hours before an on-site inspection unless the visit is conducted in response to a complaint or evidence of noncompliance.

Cap-gap extension language clarified. Cap-gap extensions apply to F-1 students with pending H-1B petitions and requests for change of status. Per the new rule, DHS clarified that extensions for such students temporarily extends the OPT period until October 1, the beginning of the new fiscal year.

Additionally, the final rule states:

Only students who earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency and certified by the Student and Exchange Visitor Program (SEVP) may apply for a STEM OPT extension.

Participating students who receive an additional qualifying degree from an accredited college or university can apply for a second STEM OPT extension.

Participating students can use a previously earned qualifying degree to apply for a STEM OPT extension. The prior degree must not have already formed the basis of a STEM OPT extension and must be from a school that is both accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP at the time of the student’s STEM OPT application. The student’s most recent degree must also be from an accredited and SEVP-certified institution.

Students must work at least 20 hours per week per employer to qualify.

Students are permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension.

All STEM OPT employers must participate in DHS’s E-Verify program.

Also on March 11, 2016, SEVP launched a STEM OPT Hub, which includes resources for students, designated school officials, and employers.

On March 18, 2016, U.S. Citizenship and Immigration Services (USCIS) finalized guidance, effective March 21, on determining whether a new job is in the “same or similar” occupational classification with respect to job portability.

The policy memorandum instructs USCIS employees on use of the Department of Labor’s Standard Occupational Classification (SOC) codes and other evidence to determine if a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140) submitted to USCIS.

The memo notes that such adjudications “require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented.” The memo states that SOC codes “provide some measure of objectivity in such assessments and thus can help address uncertainty in the portability determination process.” Although the memo focuses on how to interpret and apply SOC codes, it points out that nothing in the memo “is intended to make SOC codes or their descriptions the only factor or a mandatory factor in portability determinations or to otherwise limit USCIS flexibility to consider other relevant evidence.”

Despite those assurances, some commenters expressed concern that the guidance could have the practical effect of leading to a rigid application of SOC codes to “same or similar” determinations.

4. USCIS Reaches H-2B Cap for First Half of FY2016

On March 21, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of fiscal year (FY) 2016.

Except as noted below, USCIS will reject new H-2B petitions received any time after March 15, 2016 that request employment start dates before April 1, 2016. However, USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. Exempted petitions include:

Workers performing labor or services from November 28, 2009, until December 31, 2019 in the Commonwealth of the Northern Mariana Islands and/or Guam.

USCIS advises petitioners who are including H-2B returning workers in their petitions that in order to avoid processing delays, they must complete and submit the “H-2B Returning Worker Certification,” and are further encouraged to write “H-2B Returning Workers” prominently on the envelope and any cover pages.

On March 15, 2016, U.S. Customs and Border Protection (CBP) announced the establishment of the Electronic Visa Update System (EVUS) – a new platform under development to enhance border security in accordance with the bilateral arrangement with China to issue 10-year-validity tourist and business visas.

Launching November 2016, nationals of the People’s Republic of China holding 10-year B-1/B-2, B-1, and B-2 visas must complete an online form to update certain biographic information. Travelers will need to enroll in EVUS before traveling to the United States. An EVUS enrollment is valid for two years or until the traveler obtains a new passport, whichever comes first.

“More than 2.7 million nationals of the People’s Republic of China are part of the 10-year visa program, a milestone in diplomatic relations between the U.S. and China,” said CBP Commissioner R. Gil Kerlikowske. “The Electronic Visa Update System will enable CBP to enhance the security of the program while facilitating legitimate travel.”

In addition to valid 10-year visas and a requirement to complete EVUS enrollments before first travel to the United States, travelers under the program will need to update their enrollments at least once every two years to be admitted into the United States. A nominal fee will be charged at the time of the EVUS enrollment and for subsequent updates. The update will generally be valid for two years and will help facilitate entry into the United States.

Travelers will also be asked to update or verify their name, address, date of birth, passport number, and other basic biographic information needed to expedite entry into the United States. Visa holders do not need to do anything until the platform has officially launched, according to CBP.

The EVUS process is similar to the process that travelers from 38 other countries must follow before traveling to the United States, CBP noted. “If Chinese travelers do not update their information at least every two years, or upon obtaining new passports after EVUS becomes effective, they will not be able to use their 10-year visas.”

6. DHS Launches ‘Known Employer’ Pilot Program

The Department of Homeland Security (DHS) announced on March 3, 2016, a “Known Employer” pilot to assess a new process for employers seeking to hire certain workers through employment-based visa categories.

By modifying the process U.S. Citizenship and Immigration Services (USCIS) uses to review an employer’s eligibility to sponsor individuals under certain employment-based immigrant and nonimmigrant classifications, the Known Employer pilot is expected to reduce paperwork, costs, and delays in the processing of these benefit requests. USCIS will oversee the pilot in collaboration with the DHS Office of Policy, U.S. Customs and Border Protection (CBP), and the Department of State (DOS).

According to USCIS Director León Rodríguez, the agency is “partnering with a select group of representative organizations across a variety of industries to determine how we can improve efficiency and cut costs. If successful, we will continue to build on this trial program and promote robust trade, travel, and economic prosperity.”

The goals of the Known Employer pilot are to make the employment eligibility adjudication process more efficient and reduce delays for U.S. employers that wish to employ foreign workers under certain immigrant and nonimmigrant visa programs by:

Reducing the amount of paperwork filed by employers and retained by USCIS;

Promoting consistency in the adjudication of employment-based petitions and applications;

Streamlining the adjudicative process to achieve greater efficiency within USCIS; and

Providing greater support to CBP and DOS in support of greater efficiency and consistency at ports of entry and consular posts.

According to reports, five employers confirmed their participation in the pilot as of the launch date, including: Citigroup, Inc.; Ernst & Young LLP; Kiewit Corporation; Schaeffler Group USA Inc.; and Siemens Corp.

Under the Known Employer pilot, up to nine preselected employers will file applications requesting USCIS predetermine that they meet certain requirements relating to certain immigrant and nonimmigrant visa classifications. When making this request, employers will create a profile in the web-based Known Employer Document Library (KEDL) and upload documents relating to the requirements. USCIS officers will review and predetermine whether a prospective employer has met certain requirements relating to the visa classifications. If USCIS approves the employer’s predetermination request, the employer may then file petitions or applications for individual employees without needing to resubmit company information with each petition or application.

Reportedly, the immigrant classifications included in the Known Employer pilot are EB-1B (outstanding professor or researcher) and EB-1C (multinational executive or manager). Nonimmigrant classifications included in the pilot are H-1B (specialty occupation worker), L-1A (intracompany managerial or executive transferee in a managerial or executive capacity), L-1B (intracompany transferee in a position involving specialized knowledge), and TN (Trade NAFTA: Canadian and Mexican citizens engaged in business activities at a professional level under the North American Free Trade Agreement).

Employers will not be charged any additional fees to participate in the Known Employer pilot. The pilot is scheduled to last for up to one year. However, USCIS may terminate or extend the pilot at any time. DHS and DOS will solicit ongoing feedback from participants. If the pilot is successful, DHS is expected to implement a permanent program that is open to all eligible employers.

DHS first announced in January 2015 that it would explore a Known Employer pilot under the U.S.-Canada Beyond the Border initiative. The pilot was also recommended in a report from federal agencies submitted to President Obama in July 2015, entitled, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century.”

On March 1, 2016, U.S. Citizenship and Immigration Services (USCIS) began transferring certain cases to the Arlington, Virginia facility from other service centers to balance workloads, per a recent announcement.

The affected casework includes Form I-765, Application for Employment Authorization, filed by F-1 and M-1 students seeking Optional Practical Training (OPT), and J-1 dependents. If USCIS transfers a case, the agency will send the applicant a transfer notice. The original receipt number will not change and the transfer will not delay processing, USCIS said.

Also, the filing location and instructions for these forms are not changing. USCIS is instructing applicants to continue to file the forms at the address listed under “Where to File” in the I-765 instructions.

How to correct errors. If an Employment Authorization Document (EAD) card was approved by the PSC and contains incorrect information that the applicant believes is due to USCIS error, the applicant should submit a letter that explains the error, and include the EAD card containing the incorrect information, documents showing that USCIS made an error (such as a copy of the application sent to USCIS with the correct information, and a copy of the applicant’s birth certificate with the correct name). The letter and supporting documents should be sent to the Nebraska Service Center at the following address:

USCIS asks that individuals not send the letter and card to the Potomac Service Center. USCIS also instructs that if it made an error, applicants “do not need to submit a new Form I-765 or pay a new filing fee.”

8. USCIS Extends TPS Designations for Liberia, Sierra Leone, Guinea

On March 22, 2016, U.S. Citizenship and Immigration Services (USCIS) announced the extension of temporary protected status (TPS) designations of Liberia, Sierra Leone, and Guinea for an additional six months.

The extended designation is effective May 22, 2016, through November 21, 2016. Current TPS Guinea, Liberia, or Sierra Leone beneficiaries seeking to extend their TPS must re-register during a 60-day period that began on March 22, 2016, and runs through May 23, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.

USCIS noted “significant improvements in the conditions in all three countries since their designations for TPS in November 2014,” but said the lingering effects of the Ebola virus disease outbreak and continued recovery challenges support a six-month extension.

The six-month extension allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of November 21, 2016. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Guinea, Liberia, and Sierra Leone EADs bearing a May 21, 2016, expiration date for six months. These existing EADs are now valid through November 21, 2016.

To re-register for TPS, current beneficiaries must submit:

Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);

Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;

The I-765 application fee (or a fee-waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and

The biometric services fee (or a fee-waiver request) if they are age 14 or older.

Individuals who still have a pending initial TPS Guinea, Liberia, or Sierra Leone application do not need to submit a new I-821. However, if they currently have a TPS-related EAD and want a new EAD, they should submit:

Form I-765, Application for Employment Authorization;

The Form I-765 application fee, regardless of their age; and

A copy of the receipt notice for the initial Form I-821 that is still pending.

USCIS said it will reject the TPS application of any applicant who fails to submit the required filing fees (or a properly documented fee-waiver request). Applicants may ask USCIS to waive any fees based on an inability to pay by filing Form I-912, Request for Fee Waiver or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation.

Additional information about TPS and guidance on eligibility, the application process, and where to file is available here. The Federal Register notices contain further details, including application requirements and procedures, and the six-month auto-extension of current EADs for Liberia, Sierra Leone, and Guinea.

9. Klasko News

Upcoming Speaking Engagements

Elise A. FialkowskiElise Fialkowski will co-present “U.S. Immigration Workplace Compliance and Enforcement: What Every Employment Lawyer Needs to Know” at PBI’s 22nd Annual Employment Law Institute at the Pennsylvania Convention Center on April 27.

Recent Speaking Engagements

H. Ronald KlaskoRon Klasko was at the Wharton School on Tuesday, March 29 to discuss “Work Authorization for MBA Interns and Full-time Hires.” Ron discussed options for employment including H-1B visas as well as E, L-1, O-1, and H-3 nonimmigrant visas, and also presented on permanent residency options including EB-5.

Also on March 29, Ron was a guest speaker for the NES Financial webinar series “Navigating a Changing Sector.” Ron discussed “Process Management and Compliance” and detailed how to efficiently manage the complexities of the independent financial and immigration processes of an EB-5 project. The webinar series also includes programs on “Capital Administration and Insurance” and “Accounting Administration and Loan Servicing.” For additional details or to register for future webinars, click here.

Elise A. FialkowskiElise presented at the AILA Chicago Chapter’s 2016 Annual Midwest Regional Conference (MRC) entitled “Piercing the Veil to Raise the Bar” in Chicago on March 14, 2016. Elise served as a panelist for the session, “Emerging Issues in Nonimmigrant Status – The Bar Has Changed!” Topics included H-1B and worksites post-Simeio, LCAs for multiple positions, changes in work sites, L-1 visas and PED, and dealing with service center filing vs visa renewals for blanket L’s, among other topics. For more information on these topics, email Elise at efialkowski@klaskolaw.com.

Elise A. Fialkowski | Michele GalloOn March 1, Elise and Michele Gallo visited Stevens Institute of Technology and spoke to students about work visa options after graduation.

H. Ronald KlaskoRon was a featured speaker at the 6th Invest in America Summit 2016 in Shanghai, Beijing and Shenzhen, China from March 12-19, 2016. The Invest in America Summit and Exhibition is the largest American investment conference and trade show held annually in China. For more on EB-5, visit our EB-5 resource center at www.eb5immigration.com or write to Ron at rklasko@klaskolaw.com.

On February 13, Ron spoke at the Los Angeles County Bar Association Conference “EB-5 Reboot: New Rules, New Players, New Opportunities.” Ron led the sessions entitled “EB-5 Law vs. Lore” and “Nonimmigrant to EB-5.”

Ron also spoke at the 37th Annual AILA South Florida Immigration Law Update in Miami Beach, FL from February 4-5, 2016. Ron served as a panelist for the sessions “Strategies for Working around the H-1B Shortage,” “EB-5, Dead and Revived: What’s Left?” and “Mandamus and Declaratory Judgment: How, When and Why.”

William A. StockBill Stockspoke at the AILA Southern California Chapter Conference on March 5.

Bill spoke to scholars and researchers at Hershey Medical Center in Hershey, PA on February 17. To review the associated PowerPoint presentation, click here.

On February 16, Bill was at Pennsylvania State University, where he spoke on immigration options for the post student years and discussed non-immigrant status generally, H-1B requirements, H-1B alternatives, and permanent residency options before opening it up to questions. For more information on this program, click here.

Bill also presented at the State Bar of Texas 14th Annual Course entitled, “Advanced Immigration Law 2016,” on February 5 in Houston, TX. Bill was a panelist for the sessions, “Can We Find a Common Political Ground in Immigration?” and “Adjustment of Status vs. Consular Processing.”

Bill also spoke at the 37th Annual AILA South Florida Immigration Law Update on February 4, 2016, both as a panelist on “Issues in L-1A, L-1B and EB1-3 Processing,” and as the moderator of the plenary session, “Overview of Recent Developments in Immigration Law.” More information on the event is available here.

Finally, Bill presented at the 2016 AILA Midwinter Conference “Leading Edge Business and Removal Practice Issues” on January 22, 2016 in Paradise Island, Nassau, Bahamas. Bill participated in the panel session “Hot Topics,” providing updates on late-breaking legislative issues that may impact business practice, as well as updates on executive action.

Recent Publications

Bill Stock published several articles recently, including his latest article, “New Immigration Rule Provides Opportunities for Tech Students,” which was published in the March 16, 2016 edition of The Legal Intelligencer. In this article, Bill discusses the new STEM OPT rule and recruitment and retention of tech students by U.S. employers. The full article is available here.

Bill also shared his thoughts on the late Justice Scalia’s position on immigration in the article “Supreme Court Justice Scalia’s Complicated Immigration Legacy,” which was published in The Legal Intelligencer on February 19, 2016. To read this article, click here.

In the article “As Court Considers Immigration Action, a Progress Report for Employers,” Bill discusses aspects of President Obama’s Immigration Accountability Executive Action Plan involving business immigration rules and regulations. The article appeared in The Legal Intelligencer on January 20, 2016. Click here to read this article.